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Court of AppealDismissedCriminal Appeal No. 6 of 2018· [2020] KECA 369 (KLR)

CTM v Republic [2020] KECA 369 (KLR)

Court of Appeal
7 August 2020
Martha Karambu KoomeM. KoomeDMD. MusingaJMJ. Mohammed
2,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed life imprisonment for incest, ruling that second appeals can only challenge legal errors, not re-examine facts already decided twice.

What this practically means

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Executive summary

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The appellant, CTM, was convicted by the Principal Magistrates' Court at Kajiado of incest by a male person contrary to Section 20(1) of the Sexual Offences Act (count one) and defilement contrary to Section 8(1) as read with 8(2) (count two), and sentenced to life imprisonment on both counts, running concurrently. The High Court (Nyakundi, J.) upheld the conviction and sentence on the incest count but quashed the conviction on the defilement count. The appellant, unrepresented, lodged this second appeal against the upholding of the incest conviction, arguing that the prosecution case was not proved beyond reasonable doubt, that the evidence was contradictory, and that the High Court shifted the burden of proof to the defence. Hearing was conducted virtually pursuant to the COVID-19 Practice Directions issued by the Chief Justice in March 2020. The Court, bound by Section 361(1)(a) of the Criminal Procedure Code to consider only questions of law, distilled three issues: whether the prosecution proved its case to the required standard; whether the evidence was contradictory and inconsistent; and whether the burden of proof was shifted to the defence. The Court held that all ingredients of incest were proved: paternity was conceded and confirmed by neighbours; the complainant's minority was established by testimony and an age assessment report; and penetration was corroborated by medical evidence of a broken hymen. The alleged alteration of the P3 form related to the second complainant's form, not the incest complainant's, and the appellant identified no contradictions or burden-shifting. The Court found the life sentence properly founded in law given the complainant was under eighteen. The appeal was dismissed in its entirety and the conviction and sentence affirmed.

Key legal issues

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01

Scope of a second appeal

Holding

The Court restricted itself to questions of law under Section 361(1)(a) of the Criminal Procedure Code and did not disturb concurrent findings of fact.

Reasoning

Citing Chemagong v Republic, the Court held that on a second appeal it examines only whether there was evidence on which the trial court could have found as it did. Findings of fact by the trial court and the first appellate court bind the second appellate court unless shown to rest on no evidence.

p. 1
02

Proof of the ingredients of incest

Holding

The ingredients of incest - paternity, minority and penetration - were proved beyond reasonable doubt; the conviction on count one was properly upheld.

Reasoning

The complainant and two neighbours testified to paternity, which the appellant conceded; age was established by testimony and an age assessment report; penetration was corroborated by medical evidence showing a broken hymen. The alleged alteration of the P3 form concerned MN's form, not GNT's, and the trial court had addressed the point.

p. 4
03

Sentence of life imprisonment

Holding

Life imprisonment was lawful since the complainant was proved to be under eighteen years, and the trial court had considered mitigation.

Reasoning

Section 20(1) of the Sexual Offences Act prescribes life imprisonment where the victim is under eighteen. The Court held the sentence was properly founded in law, noting the gravity of incest and the first appellate court's reasoning that the sentence protects children.

p. 4

Legal principles established

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  • A second appeal is confined to matters of law; the Court of Appeal will not interfere with concurrent findings of fact of the two lower courts unless those findings are based on no evidence.
  • The ingredients of incest by a male person under Section 20(1) of the Sexual Offences Act are: the relationship of the complainant to the accused within the specified degrees of kinship to his knowledge; that the complainant was under eighteen years; and an indecent act or act causing penetration.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentence of life imprisonment for incest upheld by the High Court stand

Authorities

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Legislation

  • Sexual Offences ActSection 20(1)
  • Sexual Offences ActSection 11 as read with Section 11(1)
  • Sexual Offences ActSection 8(1) as read with Section 8(2)
  • Criminal Procedure CodeSection 361(1)(a)
  • Criminal Procedure CodeSection 7

Cases cited (4)

  • Chemagong v Republic
    [1984] KLR 213
  • Reuben Karari s/o Karanja vs. Republic
    17 EACA 146
  • Karingo v R.
    [1982] KLR 213
  • JMM V Republic
    [2020] eKLR
On appeal from
High Court of Kenya at Nairobi
HCCR.A. No. 25 of 2015
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "CTM v Republic [2020] KECA 369 (KLR)", Case Analysis (2020). Criminal Appeal No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/369/eng@2020-08-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.